Split decision? Not Really. Big GOP Win!

President Donald Trump seems to have limited regard for the judiciary, but maybe that’s because his main experience so far has been with the “Notorious Ninth” on the issue of immigrant/refugee “travel bans.”

Trump should be pleased to know that, closer to home, the U.S. 6th Circuit Court of Appeals is a lot friendlier. Maybe it’s no coincidence that the 6th consists entirely of states that Trump carried in last year’s election (Michigan, Ohio, Kentucky, and Tennessee), as opposed to the 9th Circuit, which blankets the “Left Coast.”

Last week, the 6th delivered a critical victory to Michigan Republicans when a three-judge panel upheld a new state law making it harder for labor unions to collect dues money for political purposes through automatic check-offs administered by their employers.

Before this article, the general public has never gotten the message, either because the ruling was ignored by the media, or coverage was botched. The few stories extant described the judges’ ruling as a “split decision,” but, if so, it should be noted that the appellants (business/conservatives/Republicans) got 95% of the benefit, while Democrats and their union clients got about 5%, which may eventually shrink to nothing.

At issue was a law (SB 571) passed by the GOP-controlled Michigan Legislature in late 2015 and signed into law by Gov. Rick Snyder that bans collective bargaining agreements that compel corporations and unions to operate payroll deduction programs, almost always without being compensated for the attendant administrative expenses. Corporations can live without “payroll deduction” devices, but unions have depended on them.

Accordingly, the unions sued Michigan Attorney General Bill Schuette and Secretary of State Ruth Johnson. Last year, federal District Judge Linda V. Parker enjoined enforcement of the new law both on existing collective bargaining agreements as well as prospective contracts. Last week, the 6th affirmed Parker’s ruling on already-existing contracts but reversed her finding that the union members’ First Amendment rights were violated because the new law prevented them from donating to their union’s political action committee via automatic payroll deduction.

The 6th’s reversal of the First Amendment claim was by far the most important decision, but the MSM (Mainstream Media) as well as two subscription Michigan newsletters appeared clueless as to its significance.

The portion of Parker’s edict that was upheld by the 6th is only for EXISTING collective bargaining agreements (CBAs) between a corporation and a union. However, once those contracts expire the new law says they cannot be renewed with “payroll deduction” language in them because it would be illegal.

The same principle applied when, in 2011, the Legislature made teacher union dues payroll deductions illegal. This prohibition did not begin until after the existing CBAs providing for dues checkoff expired. In fact, Secretary of State Johnson had already said she would not enforce the payroll deduction portion of the new law until after the expiration of any pre-existing CBAs.

Four decades ago, nobody would have believed it possible that the use of compulsory union dues for political contributions would one day be banned. Nor would anyone have believed that school districts and other public bodies would be prohibited from administering PAC payroll deductions for the Michigan Education Association or other public employee unions.

Finally, if anyone thought in the 1970s that General Motors would one day be stopped from running PAC payroll deduction programs for the United Auto Workers, they would have been laughed off the planet.

Yet, all these things have happened, and have been upheld by the courts.

The winning litigants in Michigan State AFL-CIO v. Schuette/Johnson doubt the unions will even appeal the 6th’s verdict — it’s too unlikely the Supreme Court would accept the case. The law in this area is regarded as largely “settled” after earlier litigation in Idaho and Ohio (Toledo Area AFL-CIO Council v. Pizza). Business and the GOP will be only too happy to wait for current contracts to expire, most of them within three years. Meanwhile, for corporations and unions with no contracts in place on PAC payroll deduction and union reimbursement to the corporation, the prohibition in the new law can take effect immediately.

Bottom line: by 2020, the ban will have near-universal application.

By the way, who were the GOP-friendly judges on the 6th Circuit panel? Yes, they were all appointed to the federal bench by Republican presidents — Richard Suhrheinrich by Ronald Reagan, David McKeague of Michigan by George H.W. Bush, and Chief Judge Jeffrey Sutton by George W. Bush.

Linda V. Parker? No surprise here — she was appointed to the federal bench by former President Barack Obama.